This essay is a supplement to the piece I published at Just Security on Tuesday regarding the ongoing litigation over whether the U.S. Postal Service (USPS) can enforce its new Final Rule on the delivery of mail ballots. I’ll assume readers are already familiar with that piece, which (among other things) explains in some detail how the new USPS Rule would operate.
A week ago, on September 4, Judge Indira Talwani issued a preliminary injunction prohibiting the USPS from implementing the Rule during the 2026 election. The Government applied for a stay of that injunction in both the U.S. Court of Appeals for the First Circuit and the Supreme Court. Since I published my first piece, there’ve been several important developments:
- On Thursday, a panel of the court of appeals denied the Government’s application for a stay of the preliminary injunction.
- Meanwhile, in the Supreme Court, the state plaintiffs and the organizational plaintiffs filed their oppositions to the Government’s stay application.
- Many amici also filed briefs opposing a stay (whereas conspicuously none filed briefs in support of the government). Most importantly, Professors Ned Foley, Rick Hasen, Pam Karlan and Doug Laycock filed a compelling brief that, like my Tuesday post, explains why the Court should deny the Government’s application simply because the equities—concerning the harms to the parties, voters, and the public—so dramatically skew in favor of sustaining the preliminary injunction for the next 52 days, i.e., during the 2026 election.
- On Thursday, the Solicitor General filed his reply brief in support of the stay application, which is the principal subject of this essay.
In light of these intervening activities, the case is now teed up for the Supreme Court’s consideration. It might issue its decision on the Government’s stay application at any time.
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Just over two weeks ago, in a related challenge, the Supreme Court explained in Trump v. California (slip op. 3) that “[t]o secure a stay pending appeal,” not only must the Government “show that it is likely to succeed on the merits and that it is likely to suffer irreparable harm without a stay;” it “must also demonstrate that the balance of equities does not counsel against relief.” See also Trump v. Cook, slip op. at 8 (“The applicant must show that … the balance of equities tip in its favor.”).
In my earlier piece, I explained how the USPS—and the Department of Justice’s briefs up until then—had utterly failed to make such a showing, and why that would be reason enough for the courts to deny the stay applications, regardless of whether the USPS has authority to implement its rule in the next election (it doesn’t—but that’s a question the federal courts can address later).
i. The Uncontested, Catastrophic Harms if the USPS Rule is Implemented
For starters, I explained (as have the district court and the plaintiffs, in far greater detail) that the Solicitor General and DOJ had done nothing in their briefs to contest the district court’s findings, based upon voluminous and unrebutted evidence, that if the USPS were to implement its new Rule now, the effects on the 2026 election would be catastrophic. Many voters would be disenfranchised altogether, and many others would be denied their state-law right to vote by mail. Tens of thousands of state and local election agencies would have to bear enormous costs and diversions of labor and resources at the worst imaginable time, and in some cases state officials would be compelled to violate state law. It’s not hard to imagine the sorts of chaos and controversy all of this might engender once the results are in. In a terrific Substack post, Adam Unikowsky colorfully offered a couple of the more likely scenarios:
If some people get mail ballots and some people don’t get mail ballots by the happenstance of the system being put online in the middle of the election, I am sure everyone will take that very calmly.
If thousands of people don’t get mail ballots because a single ballot in a batch has a stray marking on the barcode such that it doesn’t match the state-provided lists, causing all the mail ballots in the batch to be rejected, and an election gets decided by a few hundred votes, I am sure everyone will also take that very calmly.
In their briefs to the Supreme Court, the state (pp. 33-39) and organizational (pp. 33-37) plaintiffs recount much of the uncontested evidence about the problems the USPS Rule would cause in this election. Here’s how the court of appeals summarized the consequences in its opinion denying a stay of the preliminary injunction:
[T]he district court made detailed findings about the chaos and widespread disenfranchisement that would occur between now and November 3 should the Final Rule take immediate effect, including the fact that it would be impossible for some States to reprint compliant envelopes; the likely delays in the required USPS envelope review process; the lack of a presently operative portal; and the herculean task that would confront the USPS in scanning tens of millions of ballot envelopes and reviewing for a match with information in the presently non-operative portal. There is no countervailing record evidence disputing the district court’s findings on these points. Indeed, appellants have not even seriously challenged this aspect of the district court’s ruling, much less demonstrated why it is clearly erroneous. (emphasis added)
So what does the Solicitor General have to say about all of these profound harms in his Supreme Court reply brief?
Nothing.
I kid you not: Not a word. (Well, actually, there is one word: The Solicitor General refers to them (p.19) as “alleged countervailing harms,” thereby apparently trying to suggest that the harms are merely speculative. But of course Judge Talwani didn’t issue the preliminary injunction based upon mere allegations—she relied, instead, upon voluminous and unrebutted evidence from current and former election officials throughout the nation.)
The Solicitor General devotes part “B” of his two-part brief (pp. 16-18) to “The Serious Irreparable Harms That The Government Is Suffering,” yet there’s no corresponding section, or any account at all, about the harms to the states, to voters, to the public, or to the integrity and reliability of the election results if the USPS were to apply its Rule during the next eight weeks.
Such an omission is, to say the least, glaring in a brief from the Solicitor General to the Supreme Court in support of his own application to stay a lower-court injunction. And the (literal) one-sidedness of the brief ought to be determinative when the Court applies equity to decide whether to grant the government’s stay application.
Moreover, this remarkable silence concerning the detrimental impacts of the Rule is not unique to the Solicitor General. The USPS itself, in its rulemaking procedure, didn’t even acknowledge the severe consequences of states’ inability to comply with the Rule for purposes of this year’s election, let alone try to justify application of the Rule to that ongoing election in light of those extensive harms. As the state plaintiffs explain at pages 25-26 of their brief, those failures make the USPS’s choice of the Rule’s effective date arbitrary and capricious, which is the simplest (and most limited) merits-based ground on which the plaintiffs are likely to prevail on their APA-based claim—yet another reason, apart from the balance of equities, why the Court should deny the stay motion. See 5 U.S.C. § 706(2)(A); 39 U.S.C. § 3001(m) (providing that the APA review provisions apply to USPS “proceedings concerning the mailability of matter”).
The Solicitor General (once again) does not even contest the plaintiffs’ showing that the 2026 effective date of the Rule is arbitrary and capricious. Instead, he argues only that the USPS Rule does not concern “mailability” for purposes of § 3001(m) because the Rule involves only conditions on mailing certain things, rather than an absolute prohibition—and that therefore (according to Sauer) courts lack any authority at all to assess whether parts or all of the Rule are arbitrary or capricious.
As I explained in a footnote in my earlier piece and as the state plaintiffs explain at page 22 of their brief, that argument is wrong as a matter of law: a rule imposing conditions on the delivery of particular subject matters does involve “mailability,” as Congress has used that term. In any event, the USPS Rule does prohibit altogether the mailing of a particular matter—namely, a return ballot envelope for voters’ use (which state officials insert in the outbound envelope) that doesn’t meet USPS specifications. Even on the Solicitor General’s view, that’s a question of “mailability,” and so the rulemaking proceeding is subject to APA “arbitrary and capricious” review pursuant to § 3001(m).
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Before turning to the Solicitor General’s arguments about the alleged harms to the Government, it’s important to add a few words about the reply brief’s failure to address two discrete but significant things concerning the USPS’ promised “portal” and the USPS’ assessment of outbound ballots—two features that increase the risks of vast disenfranchisement and election chaos.
As I explained in my earlier piece, the USPS Rule would require state and local election officials, before they send out any ballots to voters, to upload the name and address of each person entitled to receive a mail ballot, and two Intelligent Mail barcodes (IMbs) “unique” to that person, to an online USPS “portal.” See Domestic Mail Manual (DMM) § 24.4.2, 91 Fed. Reg. at 54991.
Yet there is no such portal. On Thursday, Sept. 3, the USPS informed the district court that it “anticipated” having the portal up and ready to use “sometime” the next week, which has now come and gone. The Solicitor General filed his reply brief on Thursday, Sept. 10, just before the end of the week. One would naturally have expected the brief to inform the Court about when the portal will be operational. The brief, however, is conspicuously silent on that question.
The second feature in question involves what happens when a state or local election office submits mailings with ballots to USPS for delivery to voters. The USPS Rule would prohibit Postal Service personnel from delivering an outbound ballot to a voter until, inter alia, the USPS confirms that election officials had previously properly “enrolled” that person on the USPS portal, id. §§ 24.5.1, 24.5.2, and that the envelope complies with every one of the new preconditions the USPS Rule would impose (which I describe in my earlier piece), including a perfect match with the voter-specific information and barcodes pre-listed on the “portal.” So, for example, USPS would be required to decline delivery of a properly addressed ballot if the sender did not include the recipient’s name and related information on the USPS portal before the mailing, or if USPS has not yet confirmed that the information is on the portal, or if one of the barcodes on the portal for some reason doesn’t match the barcode on the outgoing envelope.
There’s been some uncertainty, in the litigation and the public discourse, about just how many ballots the USPS would refuse to deliver—and would send back to election officials—in such circumstances. In his opening brief to the Court, the Solicitor General represented that “[a]ll outbound federal-election ballot mail that meets the Rule’s requirements will be accepted, processed, and delivered as before.” That statement certainly suggested that if election officials send a batch of hundreds or thousands of outbound ballots to USPS for mailing, as they often do, USPS would reject only those that were noncompliant with the new Rule, and would mail the remainder. It now appears, however, that that is not the case.
In their Supreme Court brief, the organizational plaintiffs surmised (based in part on certain terms used in the Rule and in part on allegations by a USPS employee whistleblower that were presented to the district court) that the USPS Rule would establish a “zero-tolerance regime, under which a single mis-scanned or otherwise Rule-noncompliant envelope causes entire batches of ballots to be rejected.” See also the states’ brief at 3.
The Government’s reply brief conspicuously says nothing to rebut or to qualify the plaintiffs’ description about how the USPS system would work. Therefore, it would certainly be appropriate for the Court to presume—contrary to the Solicitor General’s previous representation—that the USPS will not “deliver[] as before” “all” outbound federal-election ballot mail that meets the Rule’s requirements. Rather, it would be fair to presume, as the organizational plaintiffs write, that, under the USPS Rule, “[i]f a single envelope barcode fails to scan for any reason, USPS must reject all ballots submitted in the same mailing, even when that means refusing to deliver thousands or millions of Rule-compliant ballots in the same mailing.”
ii. The Absence of Any Harm to the Government—Including Its Ability to Detect and Deter Voter Fraud—if the USPS Rule Remains Enjoined
Let’s turn now to the other side of the equitable balance—namely, the harms to the Government if the preliminary injunction remains in place during the 2026 election. In my previous piece I explained that the Government had failed to demonstrate, or even to try to explain, how implementation of the USPS rule would advance any governmental objectives, including the prevention of votes by ineligible individuals, in the 2026 federal election (what the Government refers to as “voter fraud”).
In his reply brief, the Solicitor General repeatedly invokes the specter of such fraudulent voting. He offers almost nothing, however, about how the implementation of the Rule over the next seven or so weeks would “deter bad actors on the front end from using the federal mails to perpetrate voter fraud, and … facilitate law-enforcement efforts to discover such mail frauds” (p.7)—just as the USPS rulemaking and all previous DOJ briefs offered nothing about that key question. (Unikowsky to similar effect: “The Postal Service insists it’s trying to combat fraud, but precisely how the requirement of checking the envelopes against the state-provided lists would achieve that goal is quite obscure. The Postal Service isn’t checking the validity of the names on the state-provided lists. So if the states send the Postal Service a list that includes deceased felon illegal immigrants, the Postal Service will duly send the ballots to the deceased felon illegal immigrants.”)
Finally, on page 17 of his 20-page reply brief, Solicitor General Sauer offers one single sentence addressing that mystery: “First, by requiring state officials to submit a list of all of the recipients to whom they intend to send ballots, it deters bad actors from mailing ballots to unauthorized voters; and second, by creating a record of individuals to whom ballots were mailed, it facilitates investigation of any irregularities after the fact by relevant authorities.”
Neither of those two cursory assertions comes anywhere close to establishing that the Rule would help the USPS deter or detect election fraud.
The first assertion in that sentence is a remarkable suggestion—to my knowledge not offered anywhere in the rulemaking or DOJ’s earlier briefs—that the function of the Rule (the pre-mailing requirement of uploading a list of voters to USPS, in particular) is not so much to ferret out ineligible voters who are casting ballots, but instead to deter so-called “bad actors” in state and local election offices from “mailing ballots to unauthorized voters.” As I wrote on Tuesday, there’s no history of such state official wrongdoing ever occurring, which presumably is why the USPS didn’t even mention it in its rulemaking. That’s an obvious makeweight.
That leaves only the Solicitor General’s second passing assertion: that by “creating a record of individuals to whom ballots were mailed,” the Rule would “facilitate[] investigation of any irregularities after the fact by relevant authorities.” There are at least three obvious reasons why that bare, vague statement is woefully inadequate to establish that the preliminary injunction is causing governmental harms.
First, the brief doesn’t explain why it’s necessary for the USPS to compel state officials to create such a list, let alone what function would be served by requiring those officials to submit it to the USPS before they mail ballots to voters. After all, the USPS itself has access to the names and addresses of the voters to whom the state actually sends ballots—i.e., the voters who might actually cast votes by mail—because that information will be on the envelopes that USPS personnel sort and deliver.
Second, the brief doesn’t explain how obtaining a pre-mailing list of possible ballot recipients would “facilitate” any investigation of “irregularities after the fact.”
Third, the Solicitor General’s formulation reveals that the USPS Rule is designed to collect information for investigative use by some unspecified “relevant authorities,” which presumably is a reference to other agencies, including the Department of Justice. Yet according to the Solicitor General, the statutory authority supporting the Rule is 39 U.S.C. § 401(2), which merely empowers the USPS “to adopt … such rules and regulations, not inconsistent with this title, as may be necessary in the execution of its functions”—not the criminal investigatory functions of other agencies. As Unikowsky puts the point, “the Postal Service does not have a freewheeling authority to refuse to deliver mail unless the sender assists with law enforcement investigations.”
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Given how threadbare (at best) the Solicitor General’s argument is with respect to all of the competing equities, he has little choice but to ultimately resort to the astonishing argument that those equities—in particular, the (uncontested) profound harms to voters, states, and trust in the national election—are simply irrelevant. “[C]ountervailing equities,” he writes, “matter only in cases where the merits and irreparable-injury factors are close,” and “the government has made an overwhelming showing on both factors.”
The Solicitor General’s factual premise there is deeply mistaken on both scores in this case:
On likelihood of success, it’s the plaintiffs who have the far more compelling case than the Government—particularly on their arguments that the USPS has no statutory authority to promulgate such a Rule that would impede rather than facilitate delivery of important mail, and (see above) that the USPS’s application of the Rule in the current election is arbitrary and capricious. (Although it’s unnecessary to go into the details of the statutory arguments here because the plaintiffs very effectively cover them in their Supreme Court briefs, I can’t resist drawing attention, in the footnote below, to one of the more remarkable aspects of the Solicitor General’s argument about the authorities Congress has afforded the Postal Service.*)
And although it’s certainly true that the preliminary injunction will have some “irreparable” impacts—undoubtedly it will result in ballots being mailed and votes cast—those irrevocable effects aren’t harmful to any legitimate governmental objectives.
More fundamentally, however, even if it were otherwise—that is, even if the Government did have the stronger case on the merits and the injunction was causing irreparable harm to a legitimate governmental interest—the Court nevertheless would have to take account of the competing equities, as I explained in my earlier piece, and as Professors Foley, Hasen, Karlan and Laycock elaborate in their excellent amicus brief. After all, the Government is asking the Court to exercise its equitable discretion, and, as Justice Scalia explained in Barnes v. E-Systems, Inc. Grp. Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301, 1305 (1991) (in chambers), because the purpose of interim equitable relief “is not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward,” it follows that “[t]he conditions that are necessary for issuance of a stay are not necessarily sufficient. Even when they all exist, sound equitable discretion will deny the stay when ‘a decided balance of convenience’ does not support it. It is ultimately necessary, in other words, ‘to “balance the equities”—to explore the relative harms to applicant and respondent, as well as the interests of the public at large.’”
That boilerplate understanding is reflected in many precedents, including the Court’s statement in the earlier iteration of this very case that in order “[t]o secure a stay pending appeal,” not only must the Government “show that it is likely to succeed on the merits and that it is likely to suffer irreparable harm without a stay;” it “must also demonstrate that the balance of equities does not counsel against relief.” Trump v. California, slip op. at 3; see also Trump v. Cook, slip op. at 8 (“The applicant must show that … the balance of equities tip in its favor.”); Winter v. NRDC, 555 U.S. 7, 24 (2008) (explaining that a “preliminary injunction is … never awarded as of right” and that “[i]n each case, courts ‘must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief’”) (internal citations omitted). And sometimes, as in Winter and in this case, the balance of equities while the case is being litigated tips so strongly in favor of the nonmoving party and the public at large that it is inappropriate for the Court to exercise equity to issue interim relief to the moving party, even if that party is likely to prevail at the end of the litigation and is suffering some harms in the meantime.** See also NetChoice, LLC v. Fitch (2025) (Kavanaugh, J., concurring in the denial of a stay application by a party that was likely to prevail in its argument that the state law in question was impermissibly restricting its constitutional right to freedom of speech).
If the Court in this case “explores the relative harms to applicant and respondent, as well as the interests of the public at large,” there isn’t real doubt that it should deny the Government’s application for a stay of the preliminary injunction, for there has rarely (if ever) been a case in which the imbalance of equities in favor of the nonmoving party has been more overwhelming than it is here.
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* In support of his argument that 39 U.S.C. § 401(2) authorizes the USPS to implement election-specific policies, the Solicitor General points to the longstanding USPS internal rules that require Postal Service personnel to accelerate the delivery of ballots, even where the sender doesn’t affix the necessary postage. According to the Solicitor General (p.9), the distinction between such USPS rules that facilitate and prioritize delivery of ballots and a rule, such as the one at issue here, that would profoundly undermine such delivery of ballots to lawful voters, is “immaterial.” That is, to say the least, a rather audacious assertion, given that Congress established the Postal Service (and empowered it to establish internal regulations) precisely to ensure that mailable items are efficiently, expeditiously, and reliably delivered to their intended recipients. It’s as though Sauer is arguing that whereas “neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds,” President Trump’s obsession with preventing voting by mail can justify a restrictive Postal Service rule that would do just that.
** On page 19 of his reply brief, the Solicitor General tries to distinguish Winter on the ground that the Court’s balancing of the equities there was justified only because “it was ‘unclear’ whether the plaintiffs were likely to suffer irreparable harm” (quoting Winter, 555 U.S. at 22-23). That’s simply a misrepresentation of Winter. As Chief Justice Roberts noted on the very page the Solicitor General cites, “even if plaintiffs have shown irreparable injury from the Navy’s training exercises, any such injury is outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors,” and thus a “proper consideration of these factors alone requires denial of the requested injunctive relief.” Id. at 23 (emphasis added); see also id. at 31 n.5 (holding that the district court abused its discretion in granting the preliminary injunction “even if plaintiffs are correct on the underlying merits,” in light of the balance of equities during the course of the litigation).
